Court File and Parties

Citation: Henderson v. S.A. Armstrong Limited, 2010 ONCA 583

Date: 2010-09-09

Docket: C51763

Court of Appeal for Ontario

Before: Goudge, Cronk and Armstrong JJ.A.

Between:

Roy Edward Henderson Plaintiff (Respondent)

and

S.A. Armstrong Limited Defendant (Appellant)

Counsel: John C. Field, for the appellant Karen Zvulony, for the respondent

Heard: September 8, 2010

On appeal from the order of Justice Anne M. Molloy of the Superior Court of Justice, dated February 10, 2010.

Appeal Book Endorsement

[1] In our view, it was open to the motion judge, on the record before her, to find that the respondent had met his obligation to cooperate under paragraph 3 of the minutes of settlement. While there was conflicting evidence, the motion judge referred to the evidence she preferred, particularly the position taken by the respondent’s accountant on the risk in signing the returns as proposed by the appellant. There is no palpable and overriding error in this finding.

[2] While, in our view, the conclusion of the motion judge that it was the appellant that was unreasonable is a gratuitous one, and perhaps open to debate, we agree with her that the proposed indemnity does not answer the concern about filing a false return.

[3] As to the costs order below, given the discretion accorded to the motion judge in such an order, we see no basis to interfere.

[4] The appeal must be dismissed.

[5] Costs to the respondent of $4000 inclusive of disbursements and applicable taxes.